ANZ hoaxer facing jail despite no profit motive

The activist who caused a $314 million temporary plunge in Whitehaven Coal's share price could face 10 years in jail, despite having no intention of personally profiting from his fake press release.

Jonathan Moylan sparked a 9 per cent fall in Whitehaven's share price by issuing a fake press release purporting to be from ANZ and claiming the bank had pulled a $1.2 billion loan from the company because of environmental concerns over its Maules Creek development.

The losses were quickly reversed later that day when ANZ and Whitehaven issued statements saying the release was a hoax.

Whitehaven Coal's chairman, former deputy prime minister Mark Vaile, says the company has been contacted by many concerned shareholders who lost money by selling shares based on the fake release.

"We see it as our responsibility on behalf of our shareholders, many of whom may have suffered some material loss because of this exercise on Monday, to pursue a number of different avenues and of course the primary focus should be the regulator, that is ASIC, in looking at what they can do as far as the corporations law is concerned," he told the ABC's 7.30 program.

The Australian Securities and Investments Commission has revealed it is taking the matter very seriously.

In an interview with 7.30, ASIC's acting chairman Greg Tanzer said the country depended on the integrity of the stock exchange.

ASIC will not go into the details of its investigation, but says if there are potential criminal charges it will move swiftly.

"[Share market integrity is] really important to the Australian economy," he explained.

"There are thousands of Australian public companies that rely on the market to provide an efficient source of funds and they employ, directly or indirectly, millions of Australians.

And on top of that there's many, many Australian superannuation funds that invest the retirement savings of millions of Australians."
In an interview this morning with ABC Radio's The World Today program, Mr Tanzer added that motivation is not relevant to whether ASIC will pursue someone for misleading financial markets.

"I don't think the identity, or the nature of the person, or their motivations are especially a matter that ASIC needs to concentrate on," he told ABC Radio's The World Today program.

"Our focus is on market integrity, and preserving market integrity, and we're concerned about threats to market integrity wherever they arise."
Increased penalties
Professor Michael Adams, the Dean of Law at the University of Western Sydney, says Mr Moylan is likely to be prosecuted under the Corporations Act, which typically covers white collar criminals rather than environmental activists.

"It looks like the main one ASIC is looking at is called s1041E of the Corporations Act, which is one that deals with false and misleading statements made in respect of securities," he told Radio National Breakfast.

Under that provision, Mr Moylan faces a maximum penalty of up to $765,000 and 10 years in jail.

In a piece of misfortune for the activist, the maximum fine for making false statements with respect to financial products was increased more than 20-fold in 2010 by the Federal Government, as part of an attempt to increase deterrence for what can be highly lucrative crimes.

The fine is now 4,500 penalty units and, in a further piece of bad luck for Mr Moylan, the value of a penalty unit was raised from $110 to $170, effective from December 28 last year.

To keep the jail terms in line with the financial penalties, the maximum prison sentence for the offence was doubled in 2010.

In increasing the maximum penalties, the Federal Government's focus was on ensuring the gain from engaging in market misconduct did not outweigh the potential penalties.

"The increased penalty provisions send a clear message to those who seek to profit from these types of market offences that behaviour that undermines the proper functioning of our financial markets will not be tolerated," said the then-financial services and corporate law minister Chris Bowen in January 2010.

However, Professor Adams says, while s1041E is mainly directed at financial market participants who put out false information for their own or others' financial gain, there does not need to be an attempt to profit to be successfully prosecuted under the provision.

"In a lot of previous cases where there's been this sort of fraud and false information to the market it has been for personal gain," he observed.

"Certainly its a distinction, but the actual provision in question doesn't require that, there is clearly an intention - from the public information that he has stated it was a very deliberate act - it was not intended to have a personal financial consequence, but it certainly has had a major financial consequence in the stock market."
Despite facing up to a decade in jail, Mr Moylan says he does not regret his actions.

"Change doesn't happen without people taking risks," he told 7.30.

"The consequences to me could be very serious but nowhere near as serious as the impact that this mine is going to have on our water and our farmlands."
However, the Frontline Action on Coal activist has apologised to shareholders who lost money because of the hoax.

"I certainly didn't intend any harm to shareholders in Whitehaven and, for the record, I do apologise," he said.

"But I won't apologise for exposing ANZ's dirty investments in Whitehaven Coal."
Media to blame
The Shareholder's Association says the media needs to accept its share of the blame for the market selling caused by the fake press release.

The association's Stephen Mayne says this incident was not a failure on the behalf of regulators or the ASX.

"As a journalist myself I actually think that the journalists and the media need to have a bit more of a look at this," he argued.

"All the selling didn't happen because of the press release, it happened because the journalists didn't check the press release, didn't check with ANZ, didn't check that there wasn't an ASX announcement and that then triggered the panic selling, albeit very briefly."
ASIC's Greg Tanzer acknowledges that many investors do rely on media outlets for a large part of their information.

"A number of people may well have been motivated by the fact that the story was on the news wires and taking some comfort from the fact that, it being on the news wires, it's likely to have been true," he said.

"Closer market watchers, I suspect, would be aware that the ASX website is the basic fount of information for these types of things, but I think a number of investors would expect that the news wires are a reasonably reliable source of information."

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